R v. Walters - [2007] QCA 388

SUPREME COURT OF QUEENSLAND

CITATION:

R v WX [2007] QCA 388

PARTIES:

R
v
WX
(applicant/appellant)

FILE NO/S:

CA No 276 of 2007
DC No 2834 of 2007
DC No 1969 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

9 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2007

JUDGES:

Keane, Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence granted
2. Appeal allowed but only to the extent that each term of imprisonment is set aside

3. In relation to the summary offence, the term of imprisonment is set aside; the applicant has been convicted but should not be otherwise punished

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant/appellant convicted of indictable offence of causing suffering to a child under 16 years of age in his care and summary offence of failing to provide for a dog in his care –where applicant/appellant sentenced to 10 weeks imprisonment with three years probation and medical, psychological and psychiatric treatment for indictable offence and concurrent term of one month's imprisonment for summary offence – where personal and general deterrence was primary factor in sentencing – whether sentence manifestly excessive

R v Wharley [2007] QCA 295; CA No 190 of 2007, 14 September 2007, cited

COUNSEL:

A W Moynihan SC for the applicant/appellant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 17 October 2007, the applicant was convicted on his own plea of causing suffering to a child under 16 years of age in his care by failing to provide her with adequate clothing, accommodation and care, in contravention of s 364A of the Criminal Code (Qld). He also pleaded guilty to the summary offence of failing to provide a dog in his care with its needs for veterinary attention.

In respect of the indictable offence of cruelty to a child, the applicant was sentenced to 10 weeks imprisonment to be followed by three years probation with the additional condition that he submit to medical, psychological and psychiatric treatment as directed by an authorised corrective services officer. For the summary offence he was sentenced to a concurrent term of one month's imprisonment.

The applicant seeks leave to appeal against these sentences on the ground that they were manifestly excessive in the circumstances.

The complainant was five years old when the offence of cruelty was committed. It was committed between 22 November 2005 and 26 June 2006. The applicant was her father. The applicant had the care of the complainant for two to three days per week and the balance of each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v. Walters

Details

AGLC: R v Walters [2007] QCA 388
Case: [2007] QCA 388
Decision Date: 9 November 2007

CaseChat Overview and Summary

The applicant, Walters, appealed against his sentence imposed following convictions for causing suffering to a child under 16 years of age and for failing to provide for a dog. The sentencing judge had imposed a 10-week imprisonment term, along with three years of probation and mandatory medical, psychological, and psychiatric treatment, for the indictable offence. For the summary offence, the judge imposed a concurrent one-month imprisonment term. The primary consideration in sentencing was the need for personal and general deterrence.

The central legal issue in the appeal was whether the sentence was manifestly excessive. The applicant argued that the sentence was disproportionate given the nature of the offences and the personal circumstances. The court needed to determine whether the sentence was appropriate in light of the objectives of sentencing, particularly personal and general deterrence. The court examined the severity of the offences, the need to protect the community, and the individual circumstances of the applicant.

The court concluded that while personal and general deterrence were valid considerations, the sentence imposed was excessive. The court noted that the indictable offence, though serious, did not warrant a lengthy imprisonment term, especially given the probation and treatment requirements. For the summary offence, the one-month imprisonment term was deemed unnecessary. The court allowed the appeal but set aside each term of imprisonment. The applicant's convictions were upheld, but no further punishment was imposed for the summary offence.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed but only to the extent that each term of imprisonment is set aside

3. In relation to the summary offence, the term of imprisonment is set aside; the applicant has been convicted but should not be otherwise punished

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v WX [2007] QCA 388
PARTIES:	R v WX (applicant/appellant)
FILE NO/S:	CA No 276 of 2007 DC No 2834 of 2007 DC No 1969 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	9 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	9 November 2007
JUDGES:	Keane, Holmes and Muir JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed but only to the extent that each term of imprisonment is set aside 3. In relation to the summary offence, the term of imprisonment is set aside; the applicant has been convicted but should not be otherwise punished
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant/appellant convicted of indictable offence of causing suffering to a child under 16 years of age in his care and summary offence of failing to provide for a dog in his care –where applicant/appellant sentenced to 10 weeks imprisonment with three years probation and medical, psychological and psychiatric treatment for indictable offence and concurrent term of one month's imprisonment for summary offence – where personal and general deterrence was primary factor in sentencing – whether sentence manifestly excessive R v Wharley [2007] QCA 295; CA No 190 of 2007, 14 September 2007, cited
COUNSEL:	A W Moynihan SC for the applicant/appellant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent